Protecting Privilege and Confidentiality With a Private Investigator

One of the most frequently asked questions by potential clients is whether the information provided by a private investigator is privileged or confidential.

The answer is ‘yes’, ‘no’ and ‘sometimes’ …

Confused yet?

In general, any information passed directly from the investigator to a non-attorney client, is not considered privileged and may be discoverable in a court proceeding.

Information passed from the investigator through an attorney does offer some protection through attorney-client privilege and work-product protection, but it’s not always the case.

Lets dig into this a little deeper.

What is Attorney-Client Privilege?

Attorney-client communication is recognized as privileged communications. It is intended  to encourage honest and complete communication between a client and an attorney, regardless of whether the lawyer has been hired or paid.  A client only needs to seek advice from an attorney-client privilege to exist.

Do Private Investigators Receive Attorney-Client Privilege?

Attorney-client privilege is not typically extended to third party consultants, which is the standard arrangement when hiring a private investigator. However, there is one circumstance where a private investigator does receive attorney-client privilege: if the communication between an attorney and his private investigator is for the express purpose of obtaining advice or discussing strategy for a case at hand.

This is a fine line, one the opposition will most likely challenge at every opportunity. Thus, most attorney-investigator relationships are attorney work-product.

What is Attorney Work-Product?

Most of the work provided by a private investigator will fall under attorney work-product.

The definition of work-product is a protection by privilege under an attorney’s guidance of strategy, theory, notes and communication to and from others. Work-product privilege allows attorneys to prepare for a case knowing the opposing side can not have access to their files.

How To Hire a Private Investigator?

When an individual is hiring a private investigator you must consider the long term view. Ask yourself, how am I going to use the information I am requesting the private investigator to acquire? Is the information for my own personal use or is it for potential litigation?

If litigation may be part of your future, you should hire your investigator through an attorney.

The objective is to protect your communication and the investigation as either attorney-client privilege or attorney work-product. If handled with tact, the results of the investigation can avoid the discovery process which can be a crucial advantage to your case down the road.

If you hire an attorney after the investigation, it will be too late. Any communication prior to your lawyers involvement will not be subject to work-product or client privilege.

How to Protect Yourself?

Don’t put things in writing. Verbal communication is not discoverable.

To cite an article written for PI Magazine by Susan Carlson, CLI, CRT entitled  Attorney Privilege Vs. Work Product, Ms. Carlson details attorney work-product privilege and what is discoverable. She sites multiple relevant case laws, including: The Work Product doctrine  born from a 1947 case, Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67S. CT 385, 393, (1947).

From the article: “Generally speaking, if you are not sure whether your communication with your attorney-client will be considered by the court to be privileged attorney work-product, don’t write it down. Verbal reports to your attorney-client are always the preferred method of communication, unless you’re instructed otherwise by the attorney. The attorney’s notes from your verbal reports and discussions are not discoverable.”

To keep your investigation out of discovery and ensure your communication remains private, assign and report case information verbally between a lawyer and private investigator.

The attorney can provide a written report of your investigation to the client. That information will remain privileged and confidential.

This may be a longer route to communicate the investigation to the client. However, the integrity of the case is stronger. Following this method for communication does not open the investigation up to discovery.

Anything you put in writing, including emails, is discoverable. Expect a request of all written notes, reports and emails during the discovery phase.

We hope this information will serve as a general guide, and is not intended to substitute for expert legal counsel.

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2 replies
  1. Lisa
    Lisa says:

    I’m doing a hypothetical case for a civil lit. class, we are given the facts and story line of the case. We have to pick out the issues, research case law on one, and write a legal memo. One scene, which takes place in public, is where a private investigator is eavesdropping on a conversation between an attorney and two clients. The PI has been hired by the doctor that the plaintiff’s are suing. The issue of privilege goes with this scene. The question is, is the PI privy to this information since it is in a public place? He is considered an uninvited party to the conversation. Would his testimony be admissible in court?

    • Brian Willingham
      Brian Willingham says:

      Really interesting question. Keep in mind that I am not a lawyer here, but my initial thought is as long as the conversation was in a public place, it would absolutely be admissible. Of course, the “public place” issue would be debated and whether or not the investigator was using some sort of aid to listen to the conversation; both of those could certainly be debated. Here is a link to check out: http://dilgnt.gr/1114evy.

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